State v. Smith

[Cite as State v. Smith, 2023-Ohio-598.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2022-0041
GAGE L. SMITH

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2022-0030

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 1, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH CHRIS BRIGDON
PROSECUTING ATTORNEY 8138 Somerset Road
JOHN CONNOR DEVER Thornville, Ohio 43076
ASSISTANT PROSECUTOR
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0041 2

Wise, J.

{¶1} Defendant-Appellant Gage L. Smith appeals his conviction and sentence

entered in the Muskingum County Court of Common Pleas on one count of identity fraud

of an elderly or disabled person, one count of theft of an elderly or disabled person, and

one count of possession of drugs, following a guilty plea.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} In February 2022, the State of Ohio charged Appellant Gage L. Smith

through a bill of information with three felonies: Count One: Identity Fraud of an Elderly

or Disabled Person, in violation of R.C. §2913.49(B)(1), a felony of the second degree;

Count Two: Theft from an Elderly or Disabled Person, in violation of R.C. §2913.02(A)(1),

a felony of the second degree; and Count Three: Possession of Drugs,

(Methamphetamine), in violation of R.C. §2925.11(A), a felony of the fifth degree. (Pl. Tr.

P. 3, 6).

{¶5} The matter came before the court, after Appellant's father, a disabled

person, was contacted by Bank of America regarding charge accounts that had been

opened in his name from December, 2017, through June, 2021. (Plea T. at 15). Through

an investigation, several cards were discovered in Douglas Smith's name (the father) with

Appellant’s billing address. The total amount between the three accounts discovered was

$46,846.51. (Plea T. at 16).

{¶6} Appellant pled guilty to the Bill of Information. (Plea T. at 6). During the

change-of-plea hearing, the trial court advised Appellant that the maximum penalty for
Muskingum County, Case No. CT2022-0041 3

Counts One and Two was 2 to 8 years in prison and an indefinite period maximum of 4

years. (Plea T. at 4). Next, the trial court informed Appellant that the maximum fine for

Count One was $15,000. Id. Then as to Count Two, also an F-2, the court read from the

plea agreement that the maximum potential fine was $50,000.00. Id. The trial court went

on to describe the plea agreement as a joint recommendation of four (4) years and eleven

(11) months in prison, and a restitution amount of $46,846.51. (Plea T. at 5). The

Appellant waived presentment of the case to the grand jury and waived the 24-hour time

requirement upon which the Appellant would have the right to answer said Bill. (Plea T.

at 6). Later, the trial court reiterated the charges within the counts and stated the

maximum potential fine in Count Two as $50,000. (Plea T. at 8). Appellant then entered

a plea of guilty as to all three counts. (Plea T. at 14-15).

{¶7} On April 4, 2022, a sentencing hearing was held wherein the trial court

sentenced Appellant as follows: Count One: a stated minimum prison term of six (6) years;

an indefinite prison term of nine (9) years; Count Two: a stated prison term of six (6)

years; Count Three: a stated prison term of twelve (12) months. The trial court ordered

the terms of incarceration imposed to be served concurrently with one another for an

aggregate minimum prison sentence of six (6) years and an indefinite prison sentence of

nine (9) years. The court also ordered restitution in the amount of $46,846.51 . The trial

court did not impose a fine on any of the Counts. (See Judgment Entry, April 7, 2022).

{¶8} Appellant now appeals, raising the following assignments of error for review:

ASSIGNMENTS OF ERROR

{¶9} “I. DID THE TRIAL COURT ERROR [SIC] WHEN ACCEPTING THE

APPELLANT'S PLEA OF GUILTY AFTER INCORRECTLY STATING THE MAXIMUM
Muskingum County, Case No. CT2022-0041 4

PENALTY OF THE FINE IN CONTRADICTION OF R.C. §2929.18 AND THEREFORE IN

CONTRADICTION OF CRIM.R. 11(C)(2)(A) IN VIOLATION OF THE APPELLANT'S

RIGHT TO DUE PROCESS GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION?

{¶10} “II. DID THE TRIAL COURT ERROR [SIC] WHEN THE SENTENCE OF 6

YEARS (AND A RESERVE TERM OF INDEFINITE TIME) WAS DISPROPORTIONATE

TO THE CRIME COMMITTED WHEN CONSIDERING THE PRINCIPLES SET FORTH

IN R.C. §2929.11 AND THE FACTORS TO BE CONSIDERED IN R.C. §2929.12.”

I.

{¶11} In his first assignment of error, Appellant argues that the trial court erred in

accepting his guilty plea. We disagree.

{¶12} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

{¶13} Crim.R. 11 governs rights upon plea. Subsection (C)(2) states the following:

(2) In felony cases the court may refuse to accept a plea of guilty or

a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally either in-person or by

remote contemporaneous video in conformity with Crim.R. 43(A) and doing

all of the following:
Muskingum County, Case No. CT2022-0041 5

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to

prove the defendant's guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶14} The standard for a trial court's Crim.R. 11 non-constitutional notifications

under (C)(2)(a) and (b) is substantial compliance; the standard for Crim.R. 11(C)(2)(c)

constitutional notifications is strict compliance. State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621.

{¶15} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses

against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the

state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the

defendant cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with

these requirements, the defendant's plea is invalid. Id. at ¶ 31.
Muskingum County, Case No. CT2022-0041 6

{¶16} The non-constitutional rights that the defendant must be informed of are: (1)

the nature of the charges; (2) the maximum penalty involved, which includes, if applicable,

an advisement on post-release control; (3) if applicable, that the defendant is not eligible

for probation or the imposition of community control sanctions; and (4) that after entering

a guilty plea or a no contest plea, the court may proceed directly to judgment and

sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio St.3d

86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26 (post-release control is a non-constitutional

advisement).

{¶17} In State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), the

Supreme Court of Ohio explained the following:

Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of

his plea and the rights he is waiving. Stewart [State v., 51 Ohio St.2d 86,

364 N.E.2d 1163 (1977)], supra; State v. Carter (1979), 60 Ohio St.2d 34,

38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445

U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789. Furthermore, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently,

and voluntarily made must show a prejudicial effect. Stewart, supra, 51 Ohio

St.2d at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is

whether the plea would have otherwise been made. Id.

{¶18} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo

standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d 474 (1990);
Muskingum County, Case No. CT2022-0041 7

State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶ 9; State v. Groves,

5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025, ¶ 7.

{¶19} The court can look to the totality of the record to determine whether that

defendant was meaningfully informed of the specific rights. State v. Ballard, 66 Ohio St.2d

473, 480-482, 423 N.E.2d 115 (1981).

{¶20} In the instant case, Appellant asserts the trial court failed to correctly advise

him of the maximum potential fine.

{¶21} Here at the plea hearing, the trial court initially advised Appellant the

maximum fine for Count Two was $15,000, but then when reviewing the plea form which

stated that the maximum fine was $50,000.

{¶22} Upon review, we find that R.C. §2913.02(B)(3) provides:

… If the victim of the offense is an elderly person, in addition to any other

penalty imposed for the offense, the offender shall be required to pay full restitution

to the victim and to pay a fine of up to fifty thousand dollars.

{¶23} Upon review, we conclude that in light of the foregoing analysis, the trial court

substantially complied with Crim.R. 11(C)(2)(a), and an additional analysis of prejudice is

unnecessary. Although clearly the prospect of a maximum fine of $15,000 as opposed to

$50,000 would be a factor weighing heavily in favor of a plea. Furthermore, no fine was

imposed by the trial court.

{¶24} Appellant’s first assignment of error is overruled.
Muskingum County, Case No. CT2022-0041 8

II.

{¶25} In his second assignment of error, Appellant argues that his sentence was

grossly disproportionate to his conduct and not in accordance with felony sentencing

guidelines. We disagree.

{¶26} This court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.

Subsection (G)(2) sets forth this Court's standard of review as follows:

{¶27} (2) The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶28} The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court's standard for review is not

whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

{¶29} (a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶30} (b) That the sentence is otherwise contrary to law.

{¶31} “Clear and convincing evidence is that measure or degree of proof which

is more than a mere ‘preponderance of the evidence,’ but not to the extent of such

certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
Muskingum County, Case No. CT2022-0041 9

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

{¶32} “A sentence is not clearly and convincingly contrary to law where the trial

court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-

015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-

022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶33} Here, in addition to a fifth-degree drug possession charge, Appellant pled

guilty to R.C. §2913.49(B)(1) and R.C. §2913.02(A)(1), both second-degree felonies.

{¶34} Appellant herein does not argue his sentence is not within the permissible

statutory range. Rather, Appellant argues the trial court did not consider his lack of a prior

criminal history, his drug addiction problem, and the fact that he was remorseful. Appellant

also argues that the trial court did not follow the joint recommendation of 4 years and 11

months in prison.

{¶35} Initially, we note that the trial court advised Appellant at the plea hearing

that the “joint recommendation is not binding on this Court and, at sentencing, I do not

have to follow it.” (Plea T. at 13).

{¶36} A trial court is not bound by a jointly recommended sentence. State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 28. A “recommended” sentence is just

as it sounds: “a nonbinding recommendation to the court, which the court is not required

to accept or comment on.” State v. Link, 5th Dist. Licking No. 21CA0059, 2022-Ohio-
Muskingum County, Case No. CT2022-0041 10

2067, 2022 WL 2188993, ¶ 54 quoting State v. Harvey, 8th Dist. Cuyahoga No. 107168,

2019-Ohio-715, 2019 WL 989892, ¶ 7. Trial courts may reject plea agreements and they

are not bound by a jointly-recommended sentence. State v. Link, 5th Dist. Licking No.

21CA0059, 2022-Ohio-2067, 2022 WL 2188993, ¶ 55 citing State v. Penrod, 5th Dist.

Licking No. 16-CA-83, 2017-Ohio-7732, ¶ 16, citing State ex rel. Duran v. Kelsey, 106

Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6. The decision to accept or reject a

plea bargain rests solely within the discretion of the trial court. State v. Jefferson, 5th Dist.

Delaware No. 11 CAA 04 0033, 2012-Ohio-148, ¶ 50, citing State v. Asberry, 173 Ohio

App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082. Hence, Appellant could not have relied

on any alleged recommended prison term by the prosecutor because a trial judge is not

required to follow such a recommendation.

{¶37} Here, the trial court stated in its sentencing entry that it “considered the

record, all statements, any victim impact statement, the plea recommendation in this

matter, as well as the principles and purposes of sentencing under Ohio Revised Code

§2929.11 and its balance of seriousness and recidivism factors under Ohio Revised Code

§2929.12.” (Sent. Entry at 1).

{¶38} A court imposing a felony sentence is required to consider the statutory

sentencing factors in R.C. §2929.11 and R.C. §2929.12, but “there is no requirement to

make specific findings or use specific language during the sentencing hearing.” State v.

Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶ 21.

{¶39} Here the sentences imposed were within the statutory range, and there is

nothing in the record to suggest the trial court ignored the factors Appellant identifies on

appeal. “Simply because the trial court did not find the factors identified by Appellant to
Muskingum County, Case No. CT2022-0041 11

militate in favor of a less severe sentence does not imply the sentence is contrary to law.”

State v. Miller, 11th Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶ 25.

{¶40} The court stated both at sentencing and in the sentencing entry that it

considered the R.C. §2929.12 factors, which is sufficient to demonstrate it did so.

Appellant's sentence was within the statutory range, and he does not point to anything in

the record showing the court ignored the sentencing factors.

{¶41} Upon review, we find Appellant has failed to show by clear and convincing

evidence that his sentence is not supported by the record, or that it is grossly

disproportionate to the crime such that it shocks the sense of justice in the community.

{¶42} Appellant’s second assignment of error is overruled.

{¶43} Accordingly, the judgment of the Muskingum County Court of Common

Pleas, Muskingum, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/kw 0224
Muskingum County, Case No. CT2022-0041 12